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1819. fendant, on the ground, that the plaintiff was no party to the Philadelphia. agreement, and that no legal authority had been shewn from BELLAS

him to Clark. Hars.

2. The deed from the plaintiff to the defendant, dated the 11th October, 1815, which the defendant objected to, because the alienations therein recited, had not been recorded in the office of the Secretary of State of the United States.

3. The exemplification of letters patent to Phares Bernard, of the 16th January, 1811, for a water boiler and steam still, which was objected to as differing from the letters patent stated in the plaintiff's replication.

After the conclusion of the arguments of the counsel, as the Court below were about to charge the jury, the counsel for the defendant submitted eight propositions to the Court, on which they requested them to charge the jury, But the Court decided, that they would not charge the jury upon any point not made in the argument.

The Court then charged the jury among other things, as follows.

The action is on a contract, dated 8th July, 1814, and that contract is the great guide in the determination of the cause. The defendant's counsel say that this contract is not binding, because the defendant is not entitled to an action of covenant upon it, against the plaintiff. The action can be sustained against the defendant. The contract is signed and sealed by him. If Hays had not performed his part of the agreement, it is possible that there might be some difficulty in an action against him. The defendant, however, might resort to Clark, who has signed and sealed the agreement, and under certain circumstances, he might bring an action against Hays. I am clearly of opinion, the action upon the agreement can be sustained by the plaintiff against the defendant.

The defendant's counsel allege, that there was no consideration. A sufficient consideration is stated in the agreement. It is true, that a suppression of truth, or suggestion of falsehood, will annul any contract. There has been much evidence given upon this subject.

If you think the defendant was cheated, the action cannot be sustained.

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BELLAS

Hays.

Much has been said about the patent to Samuel Brown, 1819. Edward West, and Thomas West, prior to Phares Bernard's. Philadelphia. The jury will take this into consideration. It is a circumstance to shew that the defendant was cheated. A certificate has been produced from the office of the Secretary of State of the United States, of an indorsement upon Phares Bernard's patent, referring to Brown & Wests' patent. It appears that Mr. Bellas carried on his distillery for a number of years, and no suit was brought against him for infringing Brown & Wests' patent. It is true, he was notified of their claim.

If you think the defendant was deceived by the representations of Clark, the fraud will protect the defendant from the payment of any damages in this case.

A man may, if he pleases, buy an imperfect right, and if he is not imposed upon, but buys with knowledge of the imperfection, he shall in law be held to the performance of his contract.

Much has been said, that the deed was not transmitted by the plaintiff to the defendant, in a reasonable time after the execution of the article. By the agreement, Bellas was to pay one hundred dollars at the execution of the agreement, which he did. He was to receive a deed as soon as practicable, upon which he was to pay 100 dollars more, and give his bond for the residue. A deed, dated 23d Fuly, 1814, was transmitted to the defendant. The defendant's letter to Clark, only finds fault with this deed for its defect as to the tract of country. This deed is only for Northumberland county; and that county had previously been divided into Northumberland, Union, and Columbia. The other deed, tendered shortly before the beginning of this suit, mentions all three counties. If the deed was not transmitted by the plaintiff to the defendant in practicable time, the jury will say so; it is for them to say.

As to the objection, that the last deed does not convey the right of vending to others to be used; I think this conveyance does substantially transfer the right contracted for in the agreement. In the agreement, nothing is said of the right of vending to others to be used. But it is for the transfer of the patent right for that district of country, and the deed embraces all contemplated in that agreement. The first deed was the same as the second, except as to Union

Vol. V.-3 I

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1819. and Columbia counties; and the defendant only complained Pliladelphia. of that defect in it. BALLAS

There are two points for the jury to consider,

1st. Was Bellas deceived by the plaintiff or his agent-if Hays.

he was, there is an end to the action. If not,

2d. Were the two conveyances of the 23 July, 1814, and 11th October, 1815, a performance of the agreement?

The Court leave the fact of the times of the tendering the deed, and the issuing the writ in this case, to the jury.

It would not be proper for the Court in the absence of the parties, to decide on the patent rights.

The defendant is not in this action, entitled to recover back the 100 dollars he paid at the time of the execution of the articles of agreement. He may proceed for that in his action in Columbia county.

Scott and Binney, for the plaintiff in error.

1. The declaration is defective. The averment is, that the deed was forwarded as soon as practicable after it was made, not that it was forwarded as soon as practicable after the agreement. At the time of the contract, but ten years of the patent were unexpired, and the deed was not made for fourteen months afterwards : so that this part of the time was lost by the defendant. The contract in respect to the time mentioned in the deed, evidently had reference to the whole subject of making, executing, and forwarding. Here the performance as alleged, differs in terms as well as in substance from the contract. The acts to be done by the plaintiff formed a condition precedent, without the due per formance of which, he cannot maintain his action. & Doug, 679. 690. 1 Salk. 171. 1 Saund. 228.

2. The articles of agreement ought not to have been admitted in evidence, until an authority was shewn from Hays to Clark. Such authority must be by deed. i Bac. Ab. (Wils. éd.) 314. 3 Bac. Ab. 167. Cooper v. Rankinda) 12 Mass. Rep. 240. 3. Vin. 125. Moore, 191. But a further objection is, that if there were such an authority, it was not executed. The writing was not signed by Clark, as agent or attorney ; nor was the name of the principal used. Comb's case.(6) % Ld. Raym. 1418. 2 Stra. 705. 1 Bac. Ab.

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319. The articles were not evidence on the plea of non est 1819. factum. They were declared on as the deed of both parties, Pla'a't-lphia. when they were not the plaintiff's deed. Neither did they BELLAS support the issue on the replication to the first special plea, Hays. that Clark had authority from Hays, and Hays was party to, and bound by the articles.

3. The deed of the 11th October, 1815, did not convey to the defendant that full right to which he was entitled by the agreement. It was merely for the right to use, but not for the right to vend the invention in the three counties; which was a material omission. The conveyance to the defendant and his assigns, is not sufficient. If he assigns, he divests himself of the right; whereas he ought to have the privilege of vending to others, and retaining the use also to himself. Godbolt, 17 Co. Lit. 150. The act of Congress, dis. tinguishes between making, using, and vending, and imposes separate penalties on each. Suppose the grantor had chosen to restrict the right of vending, can he not do so? Then his not granting it, is tantamount to a reservation or restriction.

4. The exemplification of the patent to Bernard, of the 16th January, 1811, was irrevelant to the issue, and a surprise upon the defendant, and ought not to have been permitted to be read. The patent put in issue, was that dated 7th November, 1810, for a steam still and water boiler. But this was dated at a different day and year, and was for a water boiler and steam still.

5. There was error in the Court's refusing to charge on eight points stated by the defendant's counsel, because they were not made in argument.

6. The charge is erroneous. Failure of consideration was an important item in the defence, yet the Court withdrew it from the consideration of the jury, and confined their attention to the question of fraud.

The jury were told, the consideration on the face of the deed was sufficient; whereas they ought to have been instructed, that they were to take it into view upon the evidence. Steinhauer v. Whitman.(a) In Bailey v. Fairplay,(6) it is held to be error, if the Judge state only part of the law, and is silent as to the rest.

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1819. 7. The not tendering a proper deed for so long a time, was Philadelphia. a waver by the plaintiff of the agreement; and the Court

BELLAS ought to have so instructed the jury. What was the conHays.

struction of the words, “ as soon as practicable,” ought to have been decided by the Court; whereas they gave no construction of them, but left their meaning to the jury. 1 Bac. Ab. (Wils, Ed.) 109. 3 Johns. 64, 65. Co. Lit. 56. b. 3 Yeates, 13.

8. The two points stated by the Court as the result of the whole, excluded other important points.

9. The facts as to the tender, and commencement of the suit, were left to the jury without instruction as to the result, if they should think the suit was commenced too soon. The defendant ought to have had a day, or at least a reasonable time to perform the act.

7. R. Ingersoll, contra.

1. The tender of the deed was within the time stipulated. The articles only require, that it should be forwarded as soon as practicable after it was made ; and it was alleged and proved to have been tendered on the same day it was executed. Time is an immaterial circumstance in equity. Gibson v. Patterson.(a) The delay was a loss to the plaintiff; .but if this were a defect, it is cured by the verdict.

2. The articles of agreement were signed by the defendant, and were therefore at all events evidence, on the plea of non est factum. The defendant and plaintiff both treated Clark as an authorised agent, and were estopped to say, that Clark was not an agent. The plaintiff may wave the want of a written power from himself to Clark. Here the party whose name is alleged to have been used without authority, does not take the exception. · Ewing v. Tees.(b

3. The deed of the 11th October, 1815, conveyed the patent right for the three counties, with the exclusive right of making, and using the same to the defendant and his assigns; which of course comprehended fully the right to vend. The defendant had agreed before to accept a deed similar in this respect.

4. The patent of January 16th, 1811, was evidence to shew

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